IN RE: Eliza HAYNES (2001)

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Superintendent of Albion Correctional Facility which found petitioner guilty of violating a prison disciplinary rule.

 Petitioner challenges a determination finding her guilty of violating the prison disciplinary rule against fighting.   According to the detailed misbehavior report, the victim reported that she was attacked by petitioner while in the shower.   The correction officer's report, as well as the victim's medical report, indicated that there were visible scratches on the victim's neck and chest.   When the correction officer went to petitioner's room, she was breathing heavily and visibly shaking and explained that “[the victim] got in her face so I stepped to her”.   This evidence was sufficiently relevant and probative to constitute substantial evidence to support the determination of guilt (see, Matter of Chujoi v. Selsky, 272 A.D.2d 801, 708 N.Y.S.2d 921, lv. denied 95 N.Y.2d 762, 715 N.Y.S.2d 215, 738 N.E.2d 363;   Matter of Martinez v. Lacy, 254 A.D.2d 668, 679 N.Y.S.2d 726).   Although the correction officer who wrote the report did not witness the event, he was authorized to issue the misbehavior report inasmuch as the record establishes that he “ascertained the facts of the incident” from the victim and petitioner (7 NYCRR 251-3.1[b];  see, Matter of Cobb v. Selsky, 270 A.D.2d 747, 706 N.Y.S.2d 199).

 We reject petitioner's assertion of Hearing Officer bias.   The fact that the Hearing Officer resolved credibility issues against petitioner is not indicative of bias (see, Matter of Gargano v. Goord, 278 A.D.2d 716, 718 N.Y.S.2d 102).   Petitioner's remaining contentions, to the extent they are preserved for our review, have been found to be without merit.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.